Joint Jurisdiction Courts: A Manual for Developing Tribal, Local, State & Federal Justice Collaborations, is a guide that describes the process developed in one Minnesota community and adopted by other jurisdictions including communities in California and Alaska. The manual describes the benefits of intergovernmental collaboration, and provides suggested guidelines for developing a new joint jurisdiction justice collaborative based on identified needs, tribal and community culture, evidence-based treatment principals, articulated goals, and defined outcomes and includes best practices and lessons learned from Project T.E.A.M.’s work. The manual and supplementary materials can be found on the Project T.E.A.M. website: http://www.ohsu.edu/projectteam/manual. Also visit the Project T.E.A.M. website: www.ohsu.edu/projectteam.

This comes at a time when both Congress and Tribes are looking to fill the jurisdictional gaps on reservations.  As recently as May, 2016, the Senate Committee on Indian Affairs held a hearing on S.2785, the Tribal Youth and Community Protection Act of 2016 and S.2920, the Tribal Law and Order Reauthorization and Amendments Act of 2016.  S.2785 would expand tribal criminal jurisdiction over non-Indians for certain child abuse and drug-related offenses committed in Indian Country, as well as crimes committed against tribal police officers exercising tribal criminal jurisdiction. S.2920 would explore the feasibility of integrating Federal law enforcement, public safety, substance abuse and mental health programs in Indian Country, provide for improved information sharing with Indian tribes, consult on tribal juvenile justice reform, reauthorize tribal court training, required the appointment of Federal public defenders for each district that includes Indian country, require a GAO report on justice for Indian juveniles, and other related requirements.  (If you are interested in learning more about these bills, contact me for the memos we provided our clients on this issue).  The Committee has scheduled a markup for these bills later this week.

However, the expansion of this jurisdiction requires tribes to “beef” up their tribal court systems.  Exercising tribal jurisdiction is vital to building strong tribal communities and manuals like this provide free assistance information to Tribes and tribal courts seeking to improve on their current tribal judicial system.   The Department of Justice offers Tribal Capacity Building grants to provide funding to strengthen the tribe’s ability to implement and enhance tribal justice systems through training and technical assistance to increase their knowledge of emerging technology, evidence-based practices, and new models of service. The 2016 grant application closed on June 2, 2016 but there will likely be additional opportunities in 2017.

Unfortunately, violence in our communities is a constant reality.  Keeping our communities safe and providing victims with the opportunity to heal is worth expending the time and resources necessary to build vibrant and effective tribal justice systems.

With Hope for Safe and Healthy Tribal Communities,
Lael

What in the world am I talking about!?

Tribes are heavily reliant on federal funding for their governments. Marijuana is illegal. None of the memos released by the Department of Justice change the law. Every contract and grant and self-governance compact that is executed with the federal government states that the recipient of federal funding will comply with federal law. Explicit or implicit in that agreement is that failure to comply with federal law could result in the loss of those funds. In other words, a tribe’s participation in the cannabis industry could result in the loss of their federal funding.

Whenever I mention that little factoid to people, their response is inevitably, “Well states are doing it, so why not tribes?” Here’s the thing – states are actually NOT doing it.

States are not participating in the cannabis industry as commercial entities. Instead, they are performing the governmental functions of licensing, regulating, enforcing and taxing. I think that tribes engaged in legalizing and then performing those governmental functions do not risk their federal funding the same way they are if they engage as an industry participant.

Is there a way around that? Well, there might be.

I was reading an article about Veterans Affairs and its interaction with veterans suffering from PTSD using marijuana and discovered VHA Directive 2011-004 “Access To Clinical Programs For Veterans Participating In State-Approved Marijuana Programs.” This Directive clearly states that the VA cannot terminate a veteran’s benefits if it is discovered that they are using medicinal marijuana in states that have legalized medicinal marijuana use.  I will repeat – a federal agency has issued a directive forbidding the termination of federal benefits to a person using “legal” medicinal marijuana.

Having worked in DC off and on my entire career, I know that the whims of politics and policy can change quickly (or slowly depending on what you are looking for).  But, I do think that tribes could use this Directive as precedent to seek a similar directive from federal agencies such as the Small Business Administration, Bureau of Indian Affairs, Health and Human Services, Department of Agriculture and so on.

This industry is still new and policy is uncertain. For clarity’s sake, those in Indian Country looking to participate in the industry need to be working Congress and the Administration for better guidance. I believe this Directive provides valuable precedent for tribes seeking guidance from federal agencies.

Warning Regarding Federal Law: The possession, distribution, and manufacturing of marijuana is illegal under federal law, regardless of state law which may, in some jurisdictions, decriminalize such activity under certain circumstances. Federal penalties for violating the federal Controlled Substances Act (the “CSA”) are serious and, depending on the quantity of marijuana involved, can include criminal penalties of up to 20 years in prison and/or a fine of up to $2,000,000. 21 U.S.C. § 841. The penalties increase if the sale or possession with intent occurs within 1,000 feet of a school, university, playground, or public housing facility. 21 U.S.C. § 860. In addition, the federal government may seize, and seek the civil forfeiture of, the real or personal property used to facilitate the sale of marijuana as well as the money or other proceeds from the sale. 21 U.S.C. § 881. Although the U.S. Department of Justice has noted that an effective state regulatory system, and compliance with such a system, should be considered in the exercise of investigative and prosecutorial discretion, its authority to prosecute violations of the CSA is not diminished by the passage of state laws which may permit such activity. Indeed, due to the federal government’s jurisdiction over interstate commerce, when businesses provide services to marijuana producers, processors or distributors located in multiple states, they potentially face a higher level of scrutiny from federal authorities than do their customers with local operations.

I’m at the Federal Bar Association’s 40^th Annual Federal Indian Law Conference occurring this week. Hordes of “ndn” lawyers show up with our braids glistening and cowboy boots polished to a high sheen. NNABA and NNALSA hold their annual meetings and hundreds of Indian law practitioners cram into conference rooms to talk story and commiserate about the Supreme Court’s latest jabs at the fundamental principles of Indian law that guide our practice.

I was asked to present on Economic Development and Entrepreneurship in Indian Country. After googling how to spell “entrepreneurship,” I started to think about what economic development and entrepreneurship mean in Indian Country, and more to the point, how Indian law practitioners can assist in its development.

If you follow this blog, you know that for the past several months, I’ve been spending an inordinate amount of time talking about Marijuana in Indian Country. What is particularly interesting about the cannabis issue is that for the first time since the gaming boom, Indian Country is being bombarded by commercial industry.

I’m sorry, WHAAAAAT???? Wasn’t it just six months ago that we were bemoaning the fact that it is nearly impossible to coax businesses into Indian Country?

A 2011 Forbes article entitled, Why Are Indian Reservations So Poor? A Look At The Bottom 1% said, “Companies and investors are often reluctant to do business on reservations … because getting contracts enforced under tribal law can be iffy. Indian nations can be small and issues don’t come up that often, so commercial codes aren’t well-developed and precedents are lacking. And Indian defendants have a home court advantage.” As a tribal attorney I can’t tell you how many times I would talk to a vendor interested in doing business with the gaming operation and hear them say that tribal courts cannot be trusted. And yet today, I’m fielding non-stop emails and calls from non-Indian businesses interested in both learning about their “Indian grandmother princess” heritage and asking me to facilitate meetings with tribes about the opportunities in the Cannabis industry.

What has changed?

Quick answer? Not a single thing – except that this “emerging industry” is seeing those issues that were formerly viewed as a detriment as a positive. Sovereign immunity is now viewed as an asset, gaps in tribal legislation are viewed as an opportunity to develop cutting edge legislation outside of state politics, tribal history of co-regulation with the federal government is a benefit to ensuring federal cooperation and non-enforcement of federal law. Marijuana is, after all, still an illegal substance.

In other words, the cannabis industry is viewing partnerships with tribes as a positive not a negative.

The question that is plaguing me is how to translate this remarkable change of perception of Indian Country into bringing other businesses out into Indian Country. Cities like Seattle, San Jose, and Denver have developed strong reputations as good “start-up” cities. They did this by creating a favorable business environment and supplying resources to the businesses that either start or move there. They provide access to venture capital, business friendly tax structures, access to real estate, beneficial zoning and permitting processes, good infrastructure and access to universities and research centers.

Tribes can do this too.  Indian Country has a significant amount of latitude when drafting their ordinances and regulations and can create a business friendly legal environment that both attracts and cultivates business.  And even beyond that, tribes can leverage their existing relationships with universities, insurance companies, bonding, financial services, vendors, and access to legal counsel to assist their tribal members to develop their own businesses. For example, tribes can develop relationships with colleges and universities to provide on reservation or online business classes to their tribal members. Once a tribal member reaches a point of opening their own company, tribes can use their own legal counsel to provide the tribal member with assistance incorporating the business and reviewing contracts and proposals.

Economic development and entrepreneurship in Indian Country is possible, but requires creativity, innovation and good legal minds to implement that agenda.

Loving my job,
L

Warning Regarding Federal Law: The possession, distribution, and manufacturing of marijuana is illegal under federal law, regardless of state law which may, in some jurisdictions, decriminalize such activity under certain circumstances. Federal penalties for violating the federal Controlled Substances Act (the “CSA”) are serious and, depending on the quantity of marijuana involved, can include criminal penalties of up to 20 years in prison and/or a fine of up to $2,000,000. 21 U.S.C. § 841. The penalties increase if the sale or possession with intent occurs within 1,000 feet of a school, university, playground, or public housing facility. 21 U.S.C. § 860. In addition, the federal government may seize, and seek the civil forfeiture of, the real or personal property used to facilitate the sale of marijuana as well as the money or other proceeds from the sale. 21 U.S.C. § 881. Although the U.S. Department of Justice has noted that an effective state regulatory system, and compliance with such a system, should be considered in the exercise of investigative and prosecutorial discretion, its authority to prosecute violations of the CSA is not diminished by the passage of state laws which may permit such activity. Indeed, due to the federal government’s jurisdiction over interstate commerce, when businesses provide services to marijuana producers, processors or distributors located in multiple states, they potentially face a higher level of scrutiny from federal authorities than do their customers with local operations.

There is a lot going on. Let’s just say the Capital Hilton vacuums may never be the same. (As many Hoovers as Native hair has put to rest, we really ought to invest in vacuum companies…)

But in the midst of all this seeming chaos, there is a sense of purpose. A sense that (to borrow from my Coast Salish relatives) “we are all paddling together in the same canoe”.

I think this sense of community and purpose is a gift. As an advisor to tribes in all facets of their governments and business, my practice has run from gaming to child welfare, drafting tribal court rules, real estate, business development, marijuana, and on and on. I don’t think my experience is the exception, rather, the rule.

Indian Country is incredibly diverse. But no matter how many paddles we have on the canoe or how many different hands pull them, we are all paddling together to make life better for our community.

Shout out to all those tribal leaders freezing in their jeans and slipping on the ice in cowboy boots as they charge the Hill to ensure we are never forgotten. Hands up to all their staff and the staff of these organizations listed on this site who track these important issues and let us know when we need to act. Prayers for those warriors embedded in the enemy camp who work that side on our behalf.

Keep Paddling,

Lael

Warning Regarding Federal Law: The possession, distribution, and manufacturing of marijuana is illegal under federal law, regardless of state law which may, in some jurisdictions, decriminalize such activity under certain circumstances. Federal penalties for violating the federal Controlled Substances Act (the “CSA”) are serious and, depending on the quantity of marijuana involved, can include criminal penalties of up to 20 years in prison and/or a fine of up to $2,000,000. 21 U.S.C. § 841. The penalties increase if the sale or possession with intent occurs within 1,000 feet of a school, university, playground, or public housing facility. 21 U.S.C. § 860. In addition, the federal government may seize, and seek the civil forfeiture of, the real or personal property used to facilitate the sale of marijuana as well as the money or other proceeds from the sale. 21 U.S.C. § 881. Although the U.S. Department of Justice has noted that an effective state regulatory system, and compliance with such a system, should be considered in the exercise of investigative and prosecutorial discretion, its authority to prosecute violations of the CSA is not diminished by the passage of state laws which may permit such activity. Indeed, due to the federal government’s jurisdiction over interstate commerce, when businesses provide services to marijuana producers, processors or distributors located in multiple states, they potentially face a higher level of scrutiny from federal authorities than do their customers with local operations.

Practice Tip:  Make sure your Tribal clients understand that if they sign a waiver consenting to suit then courts will honor that provision even if the dispute arose on tribal land and was between the Tribe and/or its business entity and a non-tribal vendor. The Montana “consensual relationship” exception will not save you.

In fact, the Court said that “ignoring the tribe’s decision to waive sovereign immunity and consent to state court jurisdiction would infringe on the tribe’s right to make those decisions for itself.”  The dissent agrees that there was an effective waiver, but disputes that the waiver by itself gives the State courts jurisdiction over the Tribe.

Here’s the deal, tribal sovereignty is ability to make decisions for ourselves. Good or bad, advised or ill-advised – that is the whole point of sovereignty.  As trusted advisors to tribal governments, we need to be prepared to provide tribal councils with the pros, cons and potential outcomes for the decision so that they can make informed decisions.

Sovereign immunity is an established principle of jurisprudence that holds a sovereign cannot be sued without its consent and permission. Or in other words, “the King [or Chief] can do no wrong.” But the sovereign CAN waive that right.

The question I’ve been interested in lately is the mechanism by which a tribe can waive their sovereign immunity.

For a business, anyone with “apparent authority” from the outside vendor’s perspective who signs a contract can obligate the company to the terms of the contract even if that person was not authorized to sign the contract. But this is not true when dealing with a government, including tribal governments.

I’ve been looking at cases where a waiver of sovereign immunity was signed by Joe So-and-So in the Tribal finance department who signed a contract and the court has to grapple with whether a waiver included in that contract waiver was effective.

Case law is clear that in order to be effective, a tribal waiver of sovereign immunity must be explicit and should be strictly construed.  However, even when the tribal waiver is clear, it must be signed by a duly authorized tribal representative to be effective – even if this means the other party cannot enforce the terms of the contract.

Recommendation? Tribes should develop clear guidelines for how and when sovereign immunity can be waived.

1. Draft an ordinance or resolution that clearly specifies how and when the Tribe’s sovereign immunity can be waived; and
2. Diligently comply with that process. (And I do mean, Diligently!)

Tribal sovereignty is under attack. We dodged a bullet in Bay Mills (although the SCOTUS included some zingers in that opinion. Ex Parte Young anyone?) Indian Country must be fastidious about protecting this inherent right. There are many reasonable reasons, particularly in a business context to consider limited waivers of sovereign immunity, but understand that once it is waived, courts will respect that decision. We have to be smart, do good business, and by all means, protect our right as tribal governments to make our own decisions.

Questions? Ideas on how to protect our rights? Add your comment!

At one point, I had to go pick up some guy’s sweaty beanie to which his “headdress” was pinned, off the floor where he threw it during his horrendous rendition of some country rock song. I know it wasn’t a real headdress, but isn’t that the point? When non-Natives appropriate Native people, they relegate “us” to something inferior – something less than human that can be easily discarded and forgotten.

As he was talking me down, my boyfriend said, “He just doesn’t know any better.” Hashtag. Blank-Stare. Personally, I am sick and tired of the excuses given to justify this racist garbage we are constantly exposed to, like the Washington Redskins, the “Sioux-per Drunk” t-shirts, Chief Wahoo, and on, and on, and on, and on, and on and ENOUGH ALREADY!!

So what can “we” do?

I heard my brilliant uncle, Walter Echo-Hawk give a talk recently about how the “doctrine of discovery” and notion of “plenary power” (bedrock principles of federal Indian law) are built upon the racist notions that the Native people of these United States were (and are) “savages.”  Justice Marshall, author of that famous opinion “Johnson v. M’Intosh, himself says “[t]he tribes of Indians inhabiting this country were fierce savages, whose occupation was war, whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness.”

“Houston, we have Plenary Power. Please feel free to dispose of the savages and their land at will. Over.”

And yet, as my uncle argues, we (i.e., Indian Country) continue to cite to this case and others like it as if it is the B-I-B-L-E.

Uncle Walter’s proposition goes something like this:  we need to mount an attack on this legal framework of statutes and common law that is built solidly on the principle that Native people are an inferior race, and which framework is diligently trying to annihilate us. And we should attack it using the principles of human rights found in the U.N. Declaration on the Rights of Indigenous Peoples. http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf

I like it!  (And not just because I am related to him.)

Think about this, while we continue to work on eradicating Native mascots, stereotypes, blatantly racist t-shirts and fraternity party themes, shouldn’t we also be doing what the African American community did in the late 1800’s with Plessy v. Ferguson? That is, mount a strategic attack on the legal principles founded on the idea that another race is somehow inferior to another.  If we succeed at challenging those racist legal principles I have to believe these other issues (such as Native mascots) will begin to resolve themselves.

Maybe, if the Supreme Court of the United States of America says that Native people possess human rights too… the rest of the country will start to agree.

For a more in-depth discussion about this idea, check out Walter Echo-Hawk’s website and read his books “In the Courts of the Conqueror” and “In the Light of Justice”. http://www.walterechohawk.com/

Photo credit of John Wayne Painting belongs to Bunky Echohawk

1. Whether the Ninth Circuit properly held—in conflict with this Court’s decisions—that the federal reserved water rights doctrine authorizes the unprecedented federal takeover of Alaska’s navigable waters sanctioned by the 1999 Rule.

2. Whether the Ninth Circuit properly proceeded on the premise—which also conflicts with this Court’s decisions—that ANILCA could be interpreted to federalize navigable waters at all given Congress’s silence on the Act’s application to navigable waters.

Sounds very lawyerly. What does it mean on the ground? It means our Native relatives in Alaska can subsistence fish.

My mother was adopted by the late Katie John.  My grandma Katie was a strong charismatic woman who fought the State of Alaska to ensure that her kids, grandkids, nieces, nephews, and all her descendants would have the right to fish for subsistence purposes. She continued that battle even after passing.

Today, the litigation comes to an end and Katie John is vindicated again.

Link to the materials at Turtletalk can be found here.

Lately the Indian Child Welfare Act (ICWA) is dominating the news in Indian Country because of the “Baby Veronica” case that was just decided by the Supreme Court.  ICWA was “saved”, but Baby Veronica will likely end up in a non-Native home raised by people who do not know her culture, language, or family.  I don’t know if this is a win.  I get tired of accepting legal wins when what happens at home, the REAL impact, is continued erosion of our communities and families.

My first major responsibility after graduating law school was advising a tribal child welfare department and representing the tribe in tribal court in dependencies. Child welfare can be gut-wrenching, satisfying, agonizing, joyful and painful all at the same time.  Our tribal child welfare departments, their social workers, therapists, and foster parents should be congratulated for their dedication to what is a very difficult job and for implementing the heart of ICWA – keeping our kids in our communities.  Our families and our babies are the heart, soul, and life blood of our communities. We are fortunate that these people vigilantly guard that gate. Check out National Indian Child Welfare Association for information on the trainings, workshops and resources NICWA offers.

When I started at the tribe, it was growing by leaps and bounds and I led the effort to update the tribal code to both comply with tribal expectations and Title IV-E requirements.  My personal goal was to ensure that any time we removed a child from their family home, we did it in a good way.  This meant (1) giving them adequate notice as to the allegations, (2) working with the parent when we could to rectify any minor issues, and most importantly, (3) protecting that child.

This took many forms, for example, one young mom did not understand the importance of nutrition.  Her kids ended up severely anemic and the school thought they were being neglected.  Unfortunately, mom was feeding them junk food without any nutritional value, but the agency was able work with her while the kids stayed in her care and now she knows the elements of a food pyramid better than you or I!  In other situations, a parent might be so mentally disabled that, in spite of all the love they have for their kids, it was simply not safe to leave them in that parent’s care.  In yet other situations, there was significant abuse and it was absolutely necessary to remove the child from that situation.  Thankfully, for the most part, we had family members and tribal foster parents who would step forward and take care of these kids.

But sometimes we did not have homes on the reservation or with tribal members and we had to send the kids off the reservation.  This was always a difficult decision to come to as it affected not just for the kids but for the entire family and community.  Incredibly, the tribe developed programs designed to make sure the kids remained in touch with their tribal community and family.

We also had the backing of the Tribal Council.  This was huge because without their support of the social work and legal processes that we created, the community would not have seen the process as legitimate and would instead continue to bombard the Tribal Council with their concerns and complaints.  By telling the families that they had to go through the process and that Tribal Council could not help them, not only was the political pressure alleviated but tribal members took their cue from their elected leaders and began to trust the process.  While not perfect, the process was fair and the community came to respect it.

This tiny post cannot possibly explain the aches and pains we went through, and all tribal child welfare departments and their staff go through every single hour of every single day and mostly with little thanks.

Baby Veronica is fortunate that she has two loving homes to go to.  We sometimes didn’t have any options, particularly for our special needs kids or infants born addicted to methadone or heroin.   I guess what I’m trying to say is that while the “bigger picture” is dominating airtime, we need to also remember what is going on every single day on reservations across the country and support those grassroots efforts.

For all the tribal child welfare departments, tribal courts, tribal advocates, social workers, elected leaders, parents, foster parents, aunties and uncles, grandparents, brothers and sisters, fighting this good fight on the ground, I send you my gratitude.

Please call or email if you have any questions.